On June 4th, 2018 one of the most important Supreme Court cases regarding rights for

the LGBTQ community was decided. Stemming from a 2012 incident involving the denial of a

wedding cake to a same-sex couple, this case had the possibility to be monumental in furthering

LGBTQ rights and setting the precedent for religious freedom and anti-discrimination laws.

However, the opinion of the court delivered by Justice Kennedy can hardly be described as

monumental. In a decision which neither gave nor took away rights and was focused primarily

on the technicalities of the handling of the case through the lower courts, it seems as though the

Supreme Court was focused on remaining neutral on such significant issues in order to please

both rivaling sides of the argument. This case was certainly no Obergef ell v. Hodges and only

time will tell if the important issues brought about in this case can ever be decided. However, an

in-depth analysis of the decision of the court can help us to better understand the issues at stake

with this case and similar cases, as well as help us to understand the law regarding

anti-discrimination and First Amendment cases.

Masterpiece Cakeshop in Colorado is a bakery owned by Jack Phillips, a devout

Christian. In 2012, he denied Charlie Craig and Dave Mullins a wedding cake because of his

religious opposition to same-sex marriages. At the time, Colorado did not recognize same-sex

marriages. However, Craig and Mullins went to the Colorado Civil Rights Commission and sued

under the Colorado Anti-Discrimination ACT (CADA) which prohibits discrimination based on

sexual orientation in a place of business offering goods or services to the public. The case was

sent to an Administrative Law Judge (ALJ) who ruled in favor of Craig and Mullins. The ALJ

rejected the two Constitutional claims that Phillips’ raised, the first being that making a cake for a

same-sex wedding would be compelling him to use his artistic talents to convey a message that

he didn’t agree with, which violated his freedom of speech, and the second being that making

him create cakes for same-sex weddings violated his right to free exercise of religion. The

Commission affirmed the ALJ’s decision and when Phillips appealed, the Colorado Court of

Appeals affirmed as well. However, when Phillips went to the Supreme Court they granted

certiorari and Phillips was able to renew his First Amendment claims.

The ruling for Masterpiece Cakeshop v. Colorado Civil Rights Commission was highly

anticipated and on June 4th 2018 the Supreme Court finally released their 7-2 opinion in favor of

Jack Phillips. Justice Kennedy wrote the opinion. Kennedy’s most significant argument in favor

of Phillips was mostly based off of the precedent established in Church of Lukumi Babalu v.

Hialeah. That case determined that “The government, consistent with the Constitution’s

guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of

affected citizens and cannot act in a manner that passes judgement upon or presupposes the

illegitimacy of religious beliefs and practices.” Kennedy’s reasoning was that the Commission acted in

a manner that was hostile towards Phillips’ religious beliefs and therefore the Commission's ruling against Phillips’

should be dismissed.

Kennedy argues that the hostility shown by the Civil Rights Commission towards

Phillips’ religious beliefs was first shown at the Commission’s formal public hearings where

several times during the meeting, Commissioners made comments which appeared hostile

towards the religious beliefs of people in Colorado’s business community. The record shows one

Commissioner making the comment “If a businessman wants to do business in the state and he’s

got an issue with the law’s impacting his personal belief system, he needs to look at being able to

compromise.” Another Commissioner stated that using the argument for freedom of religion to

justify discrimination is comparable to slavery and the Holocaust and “is one of the most

despicable pieces of rhetoric that people can use.” Kennedy argues that these statements are

inappropriate for a Commission tasked with providing a fair and neutral enforcement of

Colorado’s anti-discrimination law, which Kennedy points out, also protects discrimination on

the basis of religion. Kennedy states that there is no evidence of objections to those comments

from other Commissioners and “for these reasons, the Court cannot avoid the conclusion that

these statements cast doubt on the fairness and impartiality of the Commission's adjudication of

Phillips’ case.”

An additional indication of the hostility towards Phillips’ religious beliefs, Kennedy

argues, can be shown in the difference in treatment between Phillips’ case and that of the cases

of other bakers who refused to make cakes due to conscience-based objections. In three different

cases brought to the Colorado Civil Rights Commission, when bakers refused to make a cake for

a man who requested a cake with derogatory and discriminatory language and images towards

same-sex marriage, the Commission ruled in their favor and against the customer. According to

Kennedy, this directly contrasts with the Commission’s ruling towards Phillips. One of the

reasons why the Commission ruled against Phillips was due to the theory that the message of a

wedding cake would not be attributed to the baker but solely to the customer. This theory was

not used when deciding the cases involving the request for a cake with anti-gay marriage

symbolism. Additionally, with those three cases, no violation of CADA was found by the

Commission due to the fact that each bakery was willing to sell other baked goods to the

prospective customer. However, when Phillips’ brought up his willingness to sell cookies,

brownies and birthday cakes to gay and lesbian customers the Commission dismissed it as

irrelevant. Kennedy argues these are clear examples of the hostility shown by the Commission

towards Phillips’ religious beliefs, actions that were not compatible with the duty under the First

Amendment to provide neutral and impartial regulations of laws towards religion.

Additionally, when the court was asked about the differences in Phillips’ case to the

former bakery cases, the Court argued that “Denver did not discriminate against a Christian

patron on the basis of his creed when they refused to create the requested cakes. In those cases

there was no impermissible discrimination because the Division found that the bakeries refused

the patron’s request because of the offensive nature of the requested message.” To that Kennedy

argues that the difference of treatment between the cases cannot be based on the government’s

own idea of what is offensive and what is not. He states, “The Colorado court’s attempt to

account for the difference in treatment elevates one view of what is offensive over another and

itself sends a signal of official disapproval of Phillips’ religious beliefs.” Due to this Kennedy

believes the Commission’s treatment of Phillips’ case violated the right under the First

Amendment to not base laws or regulations on hostility towards religion. Phillips, Kennedy

argues, deserved a neutral decision-maker to give an impartial consideration of his religious

objections with which he was not given.

Kennedy recognizes in his opinion that the issues of this case are difficult ones to resolve.

He states however, that because the “State’s interests could have been weighed against Phillips’

sincere religious objections in a way consistent with the requisite religious neutrality that must be

strictly observed”, the ruling of the Colorado Court of Appeals against Phillips’ must be

reversed. The Supreme Court's decision offered no ruling on anti-discrimination and free exercise laws and 

no understanding of how cases like this in the future will be decided. However, this case being

neither a step back nor a step forward leaves open the possibility for growth in the future but for

now the questions of free exercise and anti-discrimination laws are left unanswered.